DOMA defeat a victory for equality

Published June 27. 2013 12:01AM

Updated June 27. 2013 12:02AM

The U.S. Supreme Court's decision Wednesday striking down the provisions of the 1996 Defense of Marriage Act was a victory for same-sex couples in Connecticut and the 12 other states where same-sex unions are legal, but most importantly it was a triumph for the principle of equal treatment.

Connecticut has recognized marriage equality since 2008, but the DOMA law denied these legally married couples the federal rights and benefits afforded other married couples. In a 5-4 ruling the court got it right, recognizing the law violated both the Fifth Amendment's protection of liberty and the Fourteenth Amendment's guarantee of equal protection of the law.

"(DOMA) imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others," wrote Justice Anthony M. Kennedy in the majority opinion.

Indeed DOMA was an unprecedented act by Congress in 1996 to infringe on the authority of states to define marriage. States have long defined marriage in different ways - the age of consent to marry, the licensing requirements, waiting periods - but however a state defined marriage the federal government recognized the institution when it came to tax policies, survivor benefits, and other legal standing contained in more than 1,000 federal laws.

DOMA created one exception; federal authorities would not recognize same-sex marriages. The majority recognized this unconstitutional inconsistency.

In another decision favorable to same-sex unions, the Supreme Court tossed out on procedural grounds a case concerning California's Proposition 8. That decision clears the way for same-sex marriages to resume in that state, meaning nearly one-third of Americans now live in states where gay unions are legal.

By a narrow vote, the approval of Proposition 8 in 2008 banned same-sex marriage in California. But the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled that voters could not constitutionally repeal a right once it had been established by the state's Supreme Court. California authorities had refused to challenge the ruling, leaving that to proponents of Proposition 8. In Wednesday's ruling the U.S. Supreme Court found those proponents lacked legal standing, leaving the circuit court ruling in place.

Taken together, the two rulings leave standing state laws and constitutional amendments banning same-sex marriage, while assuring access to federal marriage benefits for couples in states were same-sex unions are legal.

Writing the minority dissent, Justice Antonin Scalia argued the ruling by the majority had overstepped the court's authority. It is interesting how when it suits his political bent - striking down federal laws limiting campaign spending and, most recently, the provisions of the Voting Rights Act - Justice Scalia has no problem with an activist court; but when the decision striking down a law goes against his thinking, its judicial overreach.

Justice Scalia got one thing right, this opens the door to more litigation. The high court did not take up another part of the DOMA law, which allows states to refuse to recognize same-sex marriages from other states. It seems only a matter of time before that challenge comes. When it does, the court should strike down that provision as well.

Connecticut Gov. Dannel P. Malloy put it well on Wednesday.

"Every Connecticut resident deserves to have their marriage recognized as they travel among the states for work, vacation and family visits. A marriage should not be a right that you gain and lose on a road trip across the country," he said.

But for now Connecticut will have to settle for celebrating one legal victory at a time.